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UK: Q&A – Emergency Legislation Expected – Coronavirus (COVID-19)

18 March 2020
Philip Henson

 

A: UK moves from “contain” to “delay” phase
The Government has announced that the UK is moving from the “contain” phase to using new tactics to “delay” the spread of the coronavirus (COVID-19). The UK’s Chief Medical Officer has now raised the risk to the UK from “moderate” to “high”. As such, changes to existing legislation or implementing new emergency legislation – both referred to in this note – are inevitable.

What emergency legislation can we expect?
The Press has speculated that the UK Government will soon introduce emergency legislation to allow for the compulsory isolation of individuals including those over 70 years old; the detention and quarantine of infected people; the prohibition of mass gatherings. The Government will also have the power to shut pubs, bars, cinemas, restaurants and nightclubs etc., and the Police will be able to hand out hefty fines to those who contravene these restrictions.

Further details were announced by Prime Minister, Boris Johnson, in a press conference following the COBRA meeting on 16 March 2020, in which he announced new measures which are currently advisory. However, it is widely anticipated that the new measures will, eventually, become compulsory, as they are underpinned by legislation.

In this summary Q & A document we consider the little known regulations which are already in place, and review how their use may be rolled out, and some of the other legislative powers which the Government may consider using, and/or modifying.

The Health Protection (Coronavirus) Regulations 2020
With little fanfare the Government introduced the Health Protection (Coronavirus) Regulations 2020 (the Regulations) at 6.50am on 10 February 2020. They came into force immediately after they were made. The regulations apply to England only.

The Regulations were made without a draft having been laid and approved by a resolution of each House of Parliament to enable emergency public health measures to be taken to quickly respond to the threat to human health from the new strain of Wuhan novel coronavirus (2019-nCoV) “and to reduce the risk of it becoming more widespread in the community”.

What is the legal basis for introducing the Regulations?
The Regulations were made under the emergency procedure set out in section 45R of the Public Health (Control of Disease) Act 1984. Part 2A of that Act, provides a legal basis to protect the public from threats arising from infectious disease or contamination from chemicals or radiation, and includes powers to impose restrictions or requirements on people, and in relation to things and premises, for use in rare circumstances where voluntary cooperation cannot be obtained [our highlighting].

What is the purpose of the Regulations?
Lord Bethell, from the Grand Committee of the House of Lords, explained on 9 March 2020¹, that:

“The regulations provide the power to screen, isolate and detain those at risk of spreading Covid-19 and, if necessary, to keep them isolated for a period of time. The powers are proportionate—they include a number of important safeguards to ensure that all actions are proportionate. Importantly, the regulations apply only in respect of Covid-19 and have a sunset period of two years from the date of coming into force.

There is a right of appeal to the magistrates’ court against the imposition of a restriction on an individual and group of people believed to have been infected and to be at risk of infecting others. Any detention lasting more than 14 days can be reviewed “as soon as practicable” by the Secretary of State”.

How can those Regulations be made without Government Scrutiny?
Section 45B of the 1984 Act enables the appropriate Minister (defined in section 45T as the Secretary of State for England) to make regulations for preventing danger to public health from conveyances including planes, trains and automobiles, (or the persons or articles on those conveyances) arriving at any place or for preventing the spread of infection or contamination by conveyances leaving any place. It also provides a power for regulations to give effect to international agreements or arrangements, for example World Health Organisation (WHO) recommendations.

Section 45C of the 1984 Act provides a power for the appropriate Minister to make regulations to prevent, protect against, control or provide a public health response to the incidence or spread of infection or contamination in England and Wales [Our highlighting].

The Regulations were made under section 45B and 45C to enable a number of public health measures to be taken for the purpose of reducing the public health risks arising from the virus known as Wuhan novel coronavirus (2019-nCoV) (“Coronavirus”).

As explained in the accompanying explanatory memorandum, the statutory instrument would: “enable the imposition of proportionate restrictions (which may include screening, isolation and other appropriate restrictions) on individuals where the SSHSC or a registered public health consultant have reasonable grounds to suspect that the individual is, or may be, contaminated with the Coronavirus. The regulations provide for a police constable to detain an individual and enforce those restrictions as required”.

There is also a provision for police constables to: “detain individuals where they have reasonable grounds to believe an individual is, or may be, infected or contaminated with Coronavirus and are posing a risk to others. The constable is then obliged to have due regard to Public Health England guidance and consult a registered public health consultant in the exercise of their powers”.

For how long could detention powers be used?
Regulation 4 of the Regulations provides that a restriction or requirement to be detained [under regulation 5] until the later of:

(a) the end of the period of 48 hours beginning with the time from which the person’s detention under the regulation begins;

(b) such time as any screening requirements imposed on or in relation to a Person under regulation 5(1) have been complied with and the assessment referred to in that regulation carried out in relation to a Person.

What does this mean?
There is the power to impose “proportionate restrictions” on citizens where the Secretary of State for Health and Social Care (“SSHSC”), Matt Hancock MP; or, a registered public health consultant, have reasonable grounds to suspect that the individual is, or may be, contaminated with the Coronavirus. Also, for detention of individuals where there are reasonable grounds to believe that an individual is, or may be, infected or contaminated with Coronavirus and are posing a risk to others.

What is meant by Detention?
Regulation 9 of the Regulations (Detention or isolation: additional provisions) provides that the Secretary of State or registered public health consultant, must notify a Person (or, where a Person is a child, a person who is a responsible adult in relation to the Person), as soon as the Person’s detention under regulation 4 or 5 starts, or as soon as it is decided to keep Person in isolation under regulation 8, of─

(a) the fact of Person’s detention or isolation;
(b) the powers under which Person is detained or kept in isolation;
(c) the reason for Person’s detention or isolation;
(d) the next steps that may be taken and by whom;
(e) the obligation to keep the need for Person’s detention or isolation under review; and
(f) the penalty for—
(i) absconding, or attempting to abscond, from detention or isolation under regulation 15(1)(b);
(ii) providing false or misleading information intentionally or recklessly under regulation 15(2);
(iii) obstructing a person carrying out a function under these Regulations under regulation 15(3).

How will this be enforced?
Regulation 13 (enforcement) provides that

(1) where a requirement is imposed on a person to be detained or kept in isolation, a constable may do any of the following—
(a) take the person to a suitable place, specified by the Secretary of State or a public health officer, for the person’s detention or isolation;
(b) keep the person in detention or isolation.

(2) where a person absconds from detention or isolation imposed a constable may take the person into custody and return the person to the place of detention or isolation, or take the person to another suitable place specified by a public health officer.

(3) a constable may use reasonable force, if necessary, in the exercise of a power under this regulation.

Could this lead to mass quarantining?
The Parliamentary Under-Secretary of State for Health and Social Care (Jo Churchill) provided some guidance to the Second Delegated Legislation Committee on 9 March 2020.²

“On enforcement, the police have powers to take individuals into custody and return them to designated places. Just as we invoked Arrowe Park and Kents Hill Park, we have other facilities around the country to ensure that people can be encouraged to complete their period of quarantine to protect others. That is the point of these powers. It is not envisaged that this would be used for a mass quarantining situation”.

What is the definition of Isolation?
Regulation 8 of the Regulations provides for the Isolation of persons suspected to be infected with Coronavirus.

“Isolation” in relation to a person means the separation of that person from any other person in such a manner as to prevent infection or contamination (with Coronavirus)

  • at a facility designated, by notice published on gov.uk, for the purposes of these Regulations by the Secretary of State;
  • in that person’s home;
  • in a hospital; or
  • at another suitable place
 
What is the punishment?
Regulations 15 (5) provides that an offence is punishable on summary conviction by a fine not exceeding level 3 on the standard scale. The maximum for a level 3 fine is £1,000.
 
What is the appeal process?
Regulation 12 states that “A person in relation to whom a restriction or requirement is imposed under these Regulations may appeal to the magistrates’ court against the decision to impose that requirement or restriction.”
 
How long are the Regulations in place for?
As per regulation 16 they expire 2 years after they came into force – so on 10 February 2022.
 
Could the enforcement of the Regulations create a health risk?
Philip Henson, partner at ebl miller rosenfalck says as follows: “There is the obvious risk that the enforcement of the Regulations could, of itself, create another health risk to members of the Police. Consider how it would be enforced and what facilities and resources would be required to do so. Do we really think that police constables will be carting away those citizens who break any enforced isolation? Where would they be taken – the cells of the local police station? A more likely situation may arise where a police constable issues fines to citizens where they have reasonable grounds to believe that person may be infected with Coronavirus, and are posing a risk to others. The high level of the potential fine is likely to be a huge deterrent”.
 
B: What other legislative options does the UK Government have?
 
Quarantine via a Part 2A order under the Public Health (Control of Disease) Act 1984
 
There is a statutory provision to enforce a quarantine period via a Part 2A order under the Public Health (Control of Disease) Act 1984, under which the relevant local authority is able to file for a Part 2A order which is then made by a Justice of the Peace.
 
The Secretary of State currently has no powers to apply for a Part 2A order, to enforce quarantine or to place appropriate restrictions on individuals outside of this process. That is an area which the Government might seek to amend.
 
Civil Contingencies Act 2004
It is unlikely that the UK Government would seek to utilise the provisions of the Civil Contingencies Act 2004 (CCA), as it is generally thought of as terrorism legislation. However, it is worth reminding ourselves of the broad definition of “emergency” in the CCA.
 
Part 1 of the CCA created a new concept, broadly defined, of an “emergency”. It includes events which would have engaged the civil defence legislation (war or attack by a foreign power). It also includes terrorism which poses a threat of serious damage to the security of the United Kingdom. But it also extended to events which threaten serious damage to human welfare in a place in the United Kingdom or to the environment of a place in the United Kingdom. To satisfy the definition of “emergency”, the event or situation must also threaten serious damage to human welfare in, or the environment of, a place in the United Kingdom.
 
Section 21 of the CCA includes a provision to make emergency regulations, and sets out the sets out the three conditions which must be satisfied have been met before making emergency regulations, these are:
 
1. that an emergency has occurred, is occurring, or is about to occur
2. it is necessary to make provision for the purpose of dealing with the emergency and
3. the need for the provision is urgent.
 
C: Concerns for the hospitality sector and the UK’s world leading creative industries
Philip Henson, partner at ebl miller rosenfalck says as follows:
“Hotels, restaurants, bars, casinos, pubs, creative venues, music venues, night clubs, cultural spaces, cinemas and theatres – will feel the immediate economic pressure of social distancing. Many of these businesses and organisations will have insurance cover in place to help them in the event of business interruption. They will be checking the terms of those policies very carefully – as, of course, will the insurers themselves.
 
There is a particular problem, highlighted by Angela Hartnett, and other talented chefs, and leaders in the creative sector that without enforced closure by the Government they will not be able to receive pay outs under the terms of their business interruption insurance policies.
 
You could compare the situation to a traveller who has booked a holiday to, say Australia. If the Foreign and Commonwealth Office prescribes that you should not travel to Australia then that traveller would contact their travel insurer and, subject to the express terms of the insurance policy, seek to reclaim the booking costs etc. If the FCO were to say: we would prefer that you don’t travel to Australia of your own volition, but we are not forcing you not to go, then it would be an altogether more challenging conversation for the traveller to have with their insurer. This is the quandary that is facing the UK hospitality and creative sector at the moment. Insurance companies will also be checking their potential exposure and will also no doubt be lobbying for support from the UK Government”.
 
For further information, please contact:
 
Philip Henson, Partner
 
ebl miller rosenfalck, London
 
 
t: +44 (0)20 7553 6006
 
 

² https://hansard.parliament.uk/Commons/2020-03-09/debates/cc5404b2-2efc-4199-94cf-018a5b3fe8f4/HealthProtection(Coronavirus)Regulations2020?highlight=health%20protection%20coronavirus%20regulations%202020%20regulations#contribution-AFC91960-7534-4FFD-B0B4-ED2FAA37AD8A

 

We will be publishing further updates in due course: www.millerrosenfalck.com

The material contained in this note is provided for general purposes only and does not constitute legal or other professional advice specific to your situation, and should not be relied upon. Appropriate legal advice should be sought for your specific circumstances and before any action is taken.

© Miller Rosenfalck LLP, 17 March 2020

 


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Source: http://www.millerrosenfalck.com/2020/03/qa-emergency-legislation-expected-in-england-corona-virus-covid-19/

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